By Kevin Lungwitz
Being a campus administrator is a difficult job with a lot of responsibilities. The more responsibilities you have, and the more people you supervise, the more chances there are for things to go wrong. Whether it is fair or not, people generally expect you are knowledgeable and responsible for everything that happens on your campus. While certainly not an exhaustive list, here are some pointers that could minimize your potential legal risk and liability:
1. Use Student Safety as a Guiding Principle
When in doubt, err on the side of protecting students, and the law will likely follow. This is especially true when you must make a snap judgment. In a crisis, forget trying to find this article or some training manual you got three years ago to tell you what to do. Follow your instincts and protect students. State law gives all professional Texas educators immunity from general negligence claims—including injury claims—if you are acting within your scope of duties and using your professional judgment or discretion.1 Immunity is like a legal suit of armor that protects you from negligence lawsuits. Immunity eliminates the second-guessing by a court or jury months or years after the fact.
2. Never Use Corporal Punishment
One exception that can pierce the immunity suit of armor is when a school employee uses “excessive force or negligence in discipline resulting in injury.” This is referring to corporal punishment, which is legal in Texas only where authorized by the school board, unless a parent has opted out.2 (See policy FO). Corporal punishment means “the deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline.”3 Even if the school board allows it, even if you check all the boxes, if you give one swat too many, or one swat too hard, a deputy sheriff, a CPS caseworker, or an angry parent could be in your office the next day demanding answers. If injuries are sustained, you could be criminally and civilly liable.
3. Never Use Force in Anger
Educators have the right to make reasonable physical contact with students to maintain discipline in a group and to protect the health and safety of the campus community.4 You have a right to use lawful, reasonable restraint to protect a student from themself and others. But if you lose your cool, you are on thin ice. Tag out. Immediately summon the assistance of a calm colleague.
4. When Someone Alleges Student Harm, Do Something
Take allegations of student harm and bullying seriously. Document your actions and tell your supervisor. Doing nothing or being “deliberately indifferent” could spell legal trouble for you. Courts care less about whether you reached the right answer or solution in the investigation. Courts care more about whether you took seriously the allegation and your obligation to check it out. Always document your investigative efforts. See policies FFH and FFI for more details.
5. Call CPS or Law Enforcement Within 48 Hours
If someone alleges child abuse or neglect, or if you have your own reason to believe child abuse or neglect has occurred or may occur, call CPS within 48 hours. Do not perform your own investigation before reporting because the clock is ticking. Call CPS and let them do the investigation. What if you are in doubt whether to report? Answer: Make the report. A professional who knowingly fails to report commits a Class A misdemeanor, which could result in jail time and/or a hefty fine, and it could impact your job and educator certificates.
On a related note, if one of your staff members resigns or is dismissed, violates testing security, or develops a new entry in their criminal history, notify the superintendent by email or other writing within seven business days. The law requires it and if you fail to do so, you could lose your license and be fined by the State Board for Educator Certification.5
6. Assume All of Your Communications—Including Your Texts—Are Being Recorded or May Be Discovered
Sorry to stoke our collective paranoia, but you must assume the angry parent, staffer or student is recording you and always act accordingly. We know our school memos and emails may be discovered, but what about those late-night texts we send our colleagues, on our own phone, on our own servers or cell phone networks? If you are texting about work (students, parents, teachers, etc.) to your trusted assistant principal, even after hours on your own phone, those texts may be subject to the Texas Public Information Act. Always follow this rule: Don’t say it or write it unless you would be proud if it shows up on the front page of the newspaper.
7. Document Staff Performance
As long as you and other campus administrators conduct regularly scheduled walk-throughs and annual evaluations, and you hold all staff equally accountable for the same performance and conduct, you should be in good shape. Failure to properly document, however, or playing favorites, could fuel the accusation that your adverse employment recommendation was motivated by a discriminatory or retaliatory reason. Remember: Go after conduct, not people.
8. Ask for Guidance
Central office supervisors generally like to be asked for advice and guidance. It makes them feel useful. When a sticky situation arises, and you cannot put out the fire easily, don’t try to be a hero. Consult with your supervisors or the school lawyer. It’s better to get guidance and buy-in from people higher on the pay scale on the front end of a difficult situation, rather than trying to explain what happened on the back end.
9. Stay Abreast of Significant Changes to Laws and Legal Cases
Since you are cloaked in a legal suit of armor against negligence suits, many lawsuits are filed claiming “civil rights” violations in an attempt to circumvent the armor. In civil rights cases you have “qualified immunity” for acting within the scope of your duties unless your conduct violates a constitutional or statutory right that is “clearly established,” i.e., a reasonable employee in your shoes should know about this right. Claiming ignorance about clearly established student and employee civil rights is not a good strategy. Stay up to date in school law trainings. Courts expect you to know the basics.
10. Stay Under the School District Legal Umbrella Until They Throw You Under the Bus
When all heck breaks loose, and when a group of angry parents is running a social media campaign to get you fired, stay calm. Do not lash out at the community. Do not give a press interview. Do not wage war on social media which may violate policy GBBA which says only designated persons may give press releases —and you are not one of them. However, when the superintendent calls you in and asks for your resignation or when it appears your bosses no longer have your back, you should probably hire a lawyer and consider all your options.
Using these 10 rules of thumb may diminish your legal exposure, and here’s hoping you never need any of them.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
1Paraphrased from Tex. Educ. Code §22.0511
2Tex. Educ. Code Sec. 37.0011(b)
3Tex. Educ. Code Sec. 37.0011(a)
4Tex. Penal Code Sec. 9.62
5Tex. Educ. Code Sec. 21.006
TEPSA News, September/October 2022, Vol 79, No 5
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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.